Shi (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa, specifically the Subclass 186 (Employer Nomination Scheme), by an applicant who was a citizen of China. The core dispute revolved around whether the applicant met the English language proficiency requirements stipulated by the regulations at the time of their application. The decision was made by Danica Buljan, a Member of the Tribunal.

The legal issue before the Tribunal was whether the applicant satisfied the primary criteria for a Subclass 186 visa, as set out in the *Migration Regulations 1994* (Cth). Specifically, the Tribunal had to determine if the applicant met the requirements of clause 186.222, which mandates that an applicant must have had "vocational English" at the time of application, or be a person in a class specified by the Minister.

The Tribunal reasoned that "vocational English" is defined in regulation 1.15B of the Regulations, which requires either undertaking a specified language test with a specified score within the preceding three years, or holding a specified passport. The applicant, a Chinese citizen, provided a Chinese passport and stated they had not undertaken an English language test within the relevant period. The Tribunal found that the applicant did not hold a passport from the United Kingdom, the United States of America, Canada, New Zealand, or the Republic of Ireland, and therefore did not satisfy the definition of "vocational English" based on passport holding. Furthermore, the applicant confirmed they had not undertaken a specified English language test within the required timeframe. Consequently, the Tribunal concluded that the applicant did not satisfy the primary criteria for the visa.

As the primary applicant did not satisfy the criteria, the Tribunal found that the secondary applicants also failed to meet the relevant criteria. Accordingly, the Tribunal affirmed the decision not to grant the Employer Nomination (Permanent) (Class EN) visas to the applicants.